453 F.

3d 48

Maria RAMOS-PIERO, et al., Plaintiffs, Appellants,

v.
COMMONWEALTH OF PUERTO RICO, et al., Defendants,
Appellees.
No. 05-1797.

United States Court of Appeals, First Circuit.

Submitted April 5, 2006.
Decided June 30, 2006.
1

Nicolas Nogueras-Cartagena on brief for appellants.

Salvador J. Antonnetti-Stutts, Solicitor General; Mariana Negrn-Vargas,

Deputy Solicitor General; Maite D. Oronoz Rodrguez, Deputy Solicitor
General; and Leticia Casalduc-Rabell, Assistant Solicitor General, on brief for
appellees Commonwealth of Puerto Rico and Department of Transportation and
Public Works.

Francisco J. Amundaray on brief for appellee Municipality of San Juan.

Luis G. Martinez Llorens on brief for appellee Pep Boys-Manny, Moe & Jack
of Puerto Rico, Inc.

Before SELYA and LIPEZ, Circuit Judges, and SAYLOR, * District Judge.

SAYLOR, District Judge.

This appeal arises out of the tragic death of a fourteen-year-old boy who fell
into an open manhole. The plaintiffs, mostly relatives of the boy, sought
damages from various governmental and private defendants under 42 U.S.C.
1983 and state tort law.1 The district court dismissed the federal law claims on
grounds of Eleventh Amendment immunity and for failure to state a claim, and
declined to exercise its jurisdiction over the state law claims. Because we find
that (1) the Commonwealth of Puerto Rico ("Commonwealth") and the
Commonwealth Department of Transportation and Public Works (referred to in
the pleadings by its Spanish-language acronym "DTOP") did not waive their

Eleventh Amendment immunity from suit and (2) plaintiffs' claims against the
remaining governmental defendants do not rise to the level of a federal
constitutional violation, we affirm the dismissal.
I. BACKGROUND
8

Because the district court disposed of this case on motions to dismiss, we

assume the truth of the facts set forth in the amended complaint. See RedondoBorges v. U.S. Dep't. of Housing and Urban Dev., 421 F.3d 1, 5 (1st Cir.2005).

In the fall of 2003, Antonio Luis Ruiz Ramos was a student at the Llana Middle
School in Ro Piedras, Puerto Rico. On October 31, 2003, he left school around
1:40 p.m., after classes ended for the day. It was raining heavily, and much of
65th Infantry Avenue (a nearby street) and its surrounding sidewalks were
flooded by the time Antonio Luis began his walk home.

10

Antonio Luis was walking with a classmate, Ishell Marie Dvila Villalobos.
The two decided to cross 65th Infantry Avenue and wait out the rain on the
balcony of a nearby business known as "El Caporal." After some period of
time, Antonio Luis jumped off the balcony onto what he thought was solid
ground.

11

Unknown to Antonio Luis, an open manhole had been obscured by the flood
waters. He fell through the opening and into the rushing waters of a drainage
pipe. The current propelled him underground back across 65th Infantry
Avenue, and through land on which an auto-parts store owned by defendant
Pep Boys Manny, Moe & Jack of Puerto Rico, Inc. ("Pep Boys") is located.
The water carried him to a surface drainage outlet, but discarded tires and auto
parts obstructed the opening and he was trapped.

12

Rescuers eventually arrived, but the blockage slowed their efforts to locate
Antonio Luis and provide medical assistance. He suffered multiple wounds to
his head and body and drowned.

13

According to the complaint, various defendants were aware that the manhole
lacked a cover, that a school was nearby, and that the area of 65th Infantry
Avenue where the events occurred often flooded.

14

Antonio Luis's mother and other persons commenced a civil action in the
United States District Court for the District of Puerto Rico on April 22, 2004.

The complaint asserted claims for damages under 42 U.S.C. 1983 and state
tort law. Specifically, it alleged a violation of Antonio Luis's rights under the
Fourth, Fifth, Ninth, and Fourteenth Amendments to the United States
Constitution by six defendants: (1) the Commonwealth; (2) DTOP; (3) the
municipal government of San Juan, Puerto Rico ("Municipality"); (4) the
Puerto Rico Aqueduct and Sewer Authority (PRASA); (5) Ondeo de Puerto
Rico, Inc. ("Ondeo")2 , a private company operating under a service contract
with PRASA; and (6) the Puerto Rico Highway Authority ("PRHA"). Plaintiffs
also asserted state-law claims against all of the above defendants, along with
Pep Boys and three unnamed insurance companies.
15

The Commonwealth and DTOP moved to dismiss on jurisdictional grounds,

asserting immunity under the Eleventh Amendment of the United States
Constitution. The Municipality moved to dismiss contending, inter alia, that
plaintiffs failed to state a claim upon which relief could be granted under
Fed.R.Civ.P. 12(b)(6).3

16

Proceeding in several stages, the district court dismissed the entire matter.4 On
March 2, 2005, the court dismissed the claims against the Commonwealth and
DTOP on the basis of Eleventh Amendment immunity. Later, the court
dismissed the section 1983 claims against the Municipality pursuant to Rule
12(b)(6), on the ground that the Municipality's conduct failed to amount to a
constitutional violation. The court then dismissed the claims against PHRA and
Pep Boys on grounds similar to those of the Municipality and dismissed sua
sponte the remaining claims against PRASA and Ondeo based on the same
reasoning. With no federal claims remaining, the district court declined to
exercise supplemental jurisdiction over the state law claims. The court denied
plaintiffs' motion for reconsideration. This appeal ensued.
II. DISCUSSION
A. Standard of Review

17

The district court dismissed the section 1983 counts against the Commonwealth
and DTOP on jurisdictional grounds, finding plaintiffs' claims barred by the
Eleventh Amendment. The section 1983 claims against the remaining
governmental defendants and Ondeo were dismissed under Rule 12(b)(6) for
failure to state a claim.

18

In both instances, we review the lower court's dismissal order de novo,

accepting the plaintiffs' well-pleaded facts as true and indulging all reasonable

inferences therefrom. See, e.g., Redondo-Borges v. U.S. Dep't of Hous. &

Urban Dev., 421 F.3d 1, 5 (1st Cir.2005) (Rule 12(b)(6)); Arecibo Cmty.
Health Care, Inc. v. Puerto Rico, 270 F.3d 17, 22 (1st Cir. 2001) (Eleventh
Amendment immunity). We are not bound by the reasoning of the district
court, and may affirm an order of dismissal on any basis made apparent by the
record. See Otero v. P.R. Indus. Comm'n, 441 F.3d 18, 20 (1st Cir.2006).
B. Eleventh Amendment Immunity
19

The Eleventh Amendment, as construed by the Supreme Court, bars a citizen

from bringing an action in federal court against his or her own state. See Bd. of
Tr. of Univ. of Ala. v. Garrett, 531 U.S. 356, 363, 121 S.Ct. 955, 148 L.Ed.2d
866 (2001); see also Maysonet-Robles v. Cabrero, 323 F.3d 43, 48 (1st
Cir.2003) (citing Hans v. Louisiana, 134 U.S. 1, 10, 10 S.Ct. 504, 33 L.Ed. 842
(1890)). A state, however, can waive its Eleventh Amendment immunity in
three ways: "(1) by a clear declaration that it intends to submit itself to the
jurisdiction of a federal court or administrative proceeding; (2) by consent to or
participation in a federal program for which waiver of immunity is an express
condition; or (3) by affirmative conduct in litigation." New Hampshire v.
Ramsey, 366 F.3d 1, 15 (1st Cir.2004) (citations omitted).

20

Plaintiffs here claim waiver by affirmative conduct in litigation. Essentially,

they contend that: the complaint alleged three specific grounds of waiver of
immunity5 ; that the Commonwealth and DTOP responded to the complaint
with a motion to dismiss (on grounds of Eleventh Amendment immunity) that
did not deny those allegations with sufficient specificity; and that defendants'
purported failure to do so itself constituted a waiver. Plaintiffs' theory is
manifestly incorrect, if not entirely frivolous. If litigation conduct is to
constitute a waiver of immunity, that conduct must be "unambiguous" and
"must evince a clear choice to submit [the state's] rights for adjudication by the
federal courts." Maysonet-Robles, 323 F.3d at 52. Filing a motion to dismiss
that specifically asserts Eleventh Amendment immunity is hardly such an act.
E.g., Lapides v. Bd. of Regents of Univ. Sys. of Ga., 535 U.S. 613, 618-20, 122
S.Ct. 1640, 152 L.Ed.2d 806 (2002) (removing state action to federal court);
Gardner v. New Jersey, 329 U.S. 565, 574, 67 S.Ct. 467, 91 L.Ed. 504 (1947)
(filing a proof of claim in a bankruptcy proceeding); Paul N. Howard Co. v.
P.R. Aqueduct & Sewer Auth., 744 F.2d 880, 886 (1st Cir.1984) (filing a
counterclaim and third-party complaint in federal court).

21

Accordingly, we conclude that the Commonwealth and DTOP did not waive
their immunity by filing a motion to dismiss. The dismissal of the federal
claims against the Commonwealth and DTOP is therefore affirmed.

C. Substantive Due Process Claims

22

Plaintiffs' remaining section 1983 claims against the Municipality, PRASA,

Ondeo, and PRHA (collectively, "Governmental Defendants") rest on an
alleged violation of Antonio Luis's substantive due process rights. The Due
Process Clause of the Fourteenth Amendment forbids a state from depriving a
person of life, liberty, or property without due process of law. Notwithstanding
its plain language, the Due Process Clause "guarantees more than fair process,"
Washington v. Glucksberg, 521 U.S. 702, 719, 117 S.Ct. 2258, 138 L.Ed.2d
772 (1997), and "cover[s] a substantive sphere as well, barring certain
government actions regardless of the fairness of the procedures used to
implement them." County of Sacramento v. Lewis, 523 U.S. 833, 840, 118 S.Ct.
1708, 140 L.Ed.2d 1043 (1998) (citation and internal quotation marks omitted).

23

The right to substantive due process is, however, confined within relatively
narrow limits. The Supreme Court has emphasized that the Due Process Clause
does not guarantee minimum levels of safety or security. See, e.g., Collins v.
City of Harker Heights, 503 U.S. 115, 126-27, 112 S.Ct. 1061, 117 L.Ed.2d 261
(1992).6 It has likewise observed repeatedly that the Due Process Clause is not
a substitute for traditional tort remedies. See, e.g., Daniels v. Williams, 474 U.S.
327, 332, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986) ("Our constitution deals with
the large concerns of the governors and the governed, but it does not purport to
supplant traditional tort law in laying down rules of conduct to regulate liability
for injuries that attend living together in society."); Paul v. Davis, 424 U.S. 693,
701, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976) (rejecting reasoning that the
Fourteenth Amendment is "a font of tort law to be superimposed upon whatever
systems may already be administered by the States"); see also Frances-Coln
v. Ramirez, 107 F.3d 62, 63-64 (1st Cir.1997) (rejecting plaintiff's attempt to
clothe a medical malpractice claim in civil rights language).

24

Plaintiffs' claim of substantive due process here is based on the contention that
the Governmental Defendants failed to devote sufficient resources to the design
and maintenance of their sewer and highway systems, resulting in flooding and
the failure to cover an open manhole.7 They did so, plaintiffs contend, despite
knowing of the open manhole and of the tragic consequences that could arise if
the opening became obscured by floodwaters. Plaintiffs thus challenge the
executive actions of state and local officials. Under such circumstances, "the
threshold question is whether the behavior of the governmental officer is so
egregious, so outrageous, that it may fairly be said to shock the contemporary
conscience." Lewis, 523 U.S. at 848 n. 8, 118 S.Ct. 1708.

25

The "shock the conscience" standard is somewhat amorphous, but determining

its boundaries is not an arbitrary exercise. See id. at 847. The Supreme Court
has stated that negligently inflicted harm is "categorically beneath the
threshold" of a constitutional violation. Id. at 849. In contrast, behavior "at the
other end of the culpability spectrum" that is, behavior "intended to injure in
some way unjustifiable by any government interest" is the sort of official
action most likely to "shock the conscience." Id.
26

Nothing in plaintiffs' complaint indicates that the defendants actually intended

to harm Antonio Luis. Rather, the complaint alleges at most that the defendants
were deliberately indifferent to his safety. According to the Supreme Court,
culpability in this "middle range ... is a matter for closer calls." Id. And this
court has previously noted that "[i]n situations where actors have an
opportunity to reflect and make reasoned and rational decisions, deliberately
indifferent behavior may suffice to shock the conscience." Rivera v. Rhode
Island, 402 F.3d 27, 36 (1st Cir.2005) (emphasis added; internal quotation
marks omitted). That determination, however, is context-specific. Although
plaintiffs suggest otherwise, "[d]eliberate indifference that shocks in one
environment may not be so patently egregious in another." Lewis, 523 U.S. at
850, 118 S.Ct. 1708.

27

The Supreme Court's decision in Collins guides our analysis here. In that case,
a sanitation department worker died of asphyxiation from sewer gas while
working in a manhole. His widow alleged that the city was deliberately
indifferent to her husband's safety; specifically, she contended that the city
knew of the specific dangers posed by the sewer gas, but failed to provide
training, warnings, or proper equipment to deal with the threat. 503 U.S. at 11718, 112 S.Ct. 1061. The Court declined to characterize those "deliberately
indifferent" omissions as "conscience-shocking." Instead, it described the
plaintiff's complaint as "analogous to a fairly typical state-law tort claim: The
city breached its duty of care to [the decedent] by failing to provide a safe work
environment." Id. at 128.

28

We find this claim, like the claim advanced in Collins, to be analogous to a

typical state tort claim, and accordingly insufficient to state a substantive due
process violation. See Frances-Coln, 107 F.3d at 64 ("A proximate causal link
between a government agent's actions and a personal injury does not, in itself,
bring a case out of the realm of tort law and into the domain of constitutional
due process.").

29

As was the case in Collins, our unwillingness to characterize the Governmental

Defendants' alleged omission as "conscience-shocking" "rests on the
presumption that the administration of government programs is based on a

rational decisionmaking process that takes account of competing social,

political, and economic forces." 503 U.S. at 128, 112 S.Ct. 1061. Creating and
maintaining public works such as sewers, roads, and sidewalks "involve a host
of policy choices." Id. at 129, 112 S.Ct. 1061. Local governments must decide
the appropriate level of resources, which are necessarily limited, to devote to
those works. Even where the government is aware of specific dangers, such as
open manholes, it must perform a triage among competing demands a triage
that is occasionally performed in times of emergency, such as heavy rains and
flooding. Government actors must also determine, as a policy matter, how to
make these decisions and what resources to devote to assessing the various
competing needs. Such questions are best answered by locally elected
representatives and their appointees "rather than by federal judges interpreting
the basic charter of Government for the entire country." Id.8
30

We emphasize that the danger at issue in this case was a danger to the general
public not a danger that was in any meaningful sense specific to Antonio
Luis. Cf., e.g., Kallstrom v. City of Columbus, 136 F.3d 1055, 1066 (6th
Cir.1998) (state's actions must "place the victim specifically at risk, as
distinguished from a risk that affects the public at large"); Uhlrig v. Harder, 64
F.3d 567, 574 (10th Cir.1995) (plaintiff must be a "member of a limited and
specifically definable group"). In such a context, even a conscious decision not
to cover a manhole may be unwise or unreasonable, but it does not "shock the
conscience" as that term is defined under the law. See White v. Lemacks, 183
F.3d 1253, 1258 (11th Cir.1999) ("[W]hen someone not in custody is harmed
because too few resources were devoted to their safety and protection, that
harm will seldom, if ever, be cognizable under the Due Process Clause."). State
law may require due care on the part of state officials; the United States
Constitution does not. Lewis, 523 U.S. at 849, 118 S.Ct. 1708.

31

We also emphasize that the situation at bar is "quite different" from that in
which an individual is in state custody prior to his injury, and is therefore owed
a specific duty of care by the state. See Collins, 503 U.S. at 127, 112 S.Ct.
1061; DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 199200, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989). "[W]hen the state by the
affirmative exercise of its power so restrains an individual's liberty that it
renders him unable to care for himself," the state may incur an "affirmative
duty to protect" the individual. DeShaney, 489 U.S. at 200, 109 S.Ct. 998
(emphasis added). Here, however, plaintiffs can point to no affirmative act by
the state that deprived Antonio Luis of his liberty.9

32

Finally, plaintiffs assert that because Puerto Rico maintained the sewer
systems, it specifically undertook the duty to guarantee the safety of its citizens

in this context. Collins all but forecloses such a conclusion. The Court there
found that the city had no duty to provide its employees with a safe working
environment, and indicated that a claim by a pedestrian "who inadvertently
stepped into an open manhole ... should be analyzed in a similar manner."
Collins, 503 U.S. at 119, 112 S.Ct. 1061; see also Lewellen v. Metro. Gov't of
Nashville & Davidson County, Tenn., 34 F.3d 345, 350 n. 4 (6th Cir.1994)
(interpreting Collins as "indicating that persons not employed by the
government are ... precluded from recovering under 1983 for injuries caused
by the government's `deliberate indifference' to a known risk" where the
individual is not in state custody); Searles, 990 F.2d at 792 (applying Collins to
conclude that the state transportation agency had no duty to provide the public
with a safe passenger environment on its trains).10
33

In summary, the complaint fails to state a claim under section 1983 for
violation of substantive due process. The actions of the Governmental
Defendants in failing to prevent the hazard of an open manhole cover, even if
true, do not "shock the conscience" within the meaning of the law.
III. CONCLUSION

34

Without question, the death of Antonio Luis Ruiz Ramos was a horrific tragedy.
Nonetheless, we are required to separate our natural, and powerful, sympathy
for the decedent's family from our duty to apply the law. Under that standard,
the case is not a particularly close one. The Eleventh Amendment bars the
action as to the Commonwealth and DTOP. As to the Governmental
Defendants, the complaint does not allege a violation of substantive due
process, and therefore fails to state a claim under section 1983 upon which
relief can be granted.

35

Two issues remain. First, having properly dismissed the federal claims, the
district court did not abuse its discretion in declining to exercise supplemental
jurisdiction over the state-law claims asserted in this case. See 28 U.S.C.
1367(c)(3); see also Martinez v. Colon, 54 F.3d 980, 990-91 (1st Cir.1995).
Second, because we affirm the decision of the district court on the merits, we
find no abuse of discretion in its refusal to grant plaintiffs' motion for
reconsideration.

36

Affirmed.

Notes:

Of the District of Massachusetts, sitting by designation

For all relevant purposes in this opinion, Puerto Rico is treated as a stateSee,
e.g., Soto v. Flores, 103 F.3d 1056, 1064 (1st Cir. 1997) (provisions of section
1983 concerning actions "under color of state law" applicable to Puerto Rico);
Arecibo Cmty. Health Care, Inc. v. Puerto Rico, 270 F.3d 17, 21 n. 3 (1st
Cir.2001) (Puerto Rico enjoys immunity from suit to the same extent as any
state under the Eleventh Amendment).

The district court appears to have assumed that Ondeo was to be treated as a
state actor. The parties do not challenge that assumption on appeal, and because
it is immaterial to our ultimate conclusion, we do not address it

No federal claims were stated against Pep Boys or the three unnamed insurance
companies. Pep Boys moved to dismiss, contending that because plaintiffs
failed to state a federal cause of action, the district court should decline
supplemental jurisdiction over the state tort claims against Pep Boys

The matter was referred for all purposes to the United States Magistrate Judge
pursuant to 28 U.S.C. 636(c) and Fed.R.Civ.P. 73

Specifically, plaintiffs contend that the Commonwealth waived immunity by

(1) accepting federal funds under the Hazard Elimination Program, 23 U.S.C.
152, and the Highway Safety Act of 1966, 23 U.S.C. 401-11; (2) consenting
to liability for injuries caused by state negligence in maintaining its highways
and sewers under Article 404 of the Puerto Rico Political Code of 1902; and (3)
failing to demonstrate that DTOP was an "arm of the state" and thus entitled to
immunity under the Eleventh Amendment
While plaintiffs do not argue on appeal that their purported waiver grounds are
substantively correct, we note the following. First, the mere receipt of federal
funds does not constitute a waiver of immunity. See Edelman v. Jordan, 415
U.S. 651, 673-74, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). Second, for a state
statute to constitute a waiver of Eleventh Amendment immunity, "it must
specify the State's intention to subject itself to suit in federal court." Atascadero
State Hosp. v. Scanlon, 473 U.S. 234, 241, 105 S.Ct. 3142, 87 L.Ed.2d 171
(1985) (emphasis in original). Neither consent to be sued in state court nor a
general waiver of sovereign immunity is sufficient. See, e.g., Fla. Dep't of
Health & Rehabilitative Servs. v. Fla. Nursing Home Ass'n, 450 U.S. 147, 14950, 101 S.Ct. 1032, 67 L.Ed.2d 132 (1981) (consent to be sued in state court
insufficient); Atascadero, 473 U.S. at 241, 105 S.Ct. 3142 (general waiver of
sovereign immunity insufficient). Third, appellants subsequently conceded in
their pleadings that DTOP was an "arm of the state" for purposes of Eleventh

Amendment immunity.
6

See also DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189,
194-97, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989) (holding that a state's failure to
protect an individual against private violence generally does not constitute a
violation of the Due Process Clause, because the Clause imposes no duty on
the state to provide members of the general public with adequate protective
services); Soto v. Flores, 103 F.3d 1056, 1064 (1st Cir. 1997) (where the harm
is caused by a third party, "courts must be careful to distinguish between
conventional torts and constitutional violations").

Plaintiffs allege an array of misconduct and omissions including, among other

things, failure to construct and maintain the sewer facilities to prevent flooding;
failure to maintain the highway and adjacent lands to prevent flooding; failure
to supervise the area around the manhole; improper use of a drainage pump;
and failure to inspect and repair the open manhole

Moreover, each policy option will inevitably carry its own risks risks that
will, in many cases, be well-known to the policy-makers. Yet a "substantive
due process violation does not arise whenever the government's choice prompts
a known risk to come to pass."Schroder v. City of Fort Thomas, 412 F.3d 724,
729 (6th Cir.2005).

To the extent plaintiffs attempt to ground liability in the so-called "state-created

danger" theory, the absence of an affirmative act by the state in creating the
danger is fatal to the claimSee Rivera, 402 F.3d at 37. The only affirmative acts
reasonably inferred from the complaint are that the state built and maintained
the roadways and sewer systems. These acts are simply too attenuated from the
danger at issue to meet the requirements of this particular due process theory.
See id.; Searles v. Se. Penn. Transp. Auth., 990 F.2d 789, 793 (3d Cir.1993).

10

Plaintiffs here attempt to distinguishCollins on the ground that the decedent in

that case voluntarily accepted "an offer of employment." 503 U.S. at 128, 112
S.Ct. 1061. In contrast, plaintiffs contend Antonio Luis was a minor and
therefore unable to take voluntary actions. That distinction in this context is
immaterial; it can hardly be said that the plaintiff in Collins knew the danger he
faced and voluntarily entered the manhole nonetheless. Indeed, it was precisely
the alleged lack of knowledge that gave rise to the claim.